06/07/2006 - 10:20

ABCC releases details of rail claim

06/07/2006 - 10:20

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The Australian Building and Construction Commission today released details of proceedings filed in the Federal Court of Australia against 107 employees working on the city section of the Perth-Mandurah rail project.

ABCC releases details of rail claim

The Australian Building and Construction Commission today released details of proceedings filed in the Federal Court of Australia against 107 employees working on the city section of the Perth-Mandurah rail project.

The ABCC, founded last year with powers to enforce workplace laws and address problems in the building and construction industry, alleges that from 24 February 2006 to 3 March 2006 on the section of the railway project known as New Metro Rail City Project - Package F:
- 107 employees contravened section 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by taking unlawful industrial action; and
- 82 employees breached an order of the Australian Industrial Relations Commission (AIRC) made pursuant to section 127 of the Workplace Relations Act 2006. The order directed the Construction Forestry Mining and Energy Union (CFMEU) and its members employed on the Package F to not take industrial action.

The ABCC is seeking:
- a declaration that each of the employees engaged in unlawful industrial action;
- a declaration that employees served with the AIRC order breached the terms of the order; and
- penalties for the contraventions.

The maximum penalties that can be imposed against each employee are $22,000 for a contravention of section 38 of the BCII Act and $6,600 for a contravention of the AIRC order.

The employees were on strike for seven days commencing on 24 February 2006. They returned to work on 8 March 2006. The issue that precipitated the strike was the termination of a union shop steward on the Project.

The strike occurred before the WorkChoices amendments commenced and the ABCC proceedings rely on the pre-WorkChoices legislation.

The employees' union the CFMEU is not subject to the proceedings. A union official addressed the stopwork meetings associated with the case. The union has submitted court statements that the official advised the employees they were exposed to severe penalties by taking strike action and recommended a return to work. The employees rejected this recommendation on more than one occasion.

 

 

Below is pasted a background briefing supplied by the ABCC

1. The rail project is a $1.6 billion project which includes 12 new stations and two tunnels under Perth linking the city with Mandurah 74 kilometres to the south west.

2. The project is the largest public transport project ever undertaken in Western Australia. The completed project will reach four times the population that is currently serviced by the railway.

3. The rail project is divided into a number of different contracts or "packages". Package F - City Works was awarded to the Leighton-Kumagai Joint Venture (LKJV) in February 2004. Package F is the most expensive in the railway project, valued at over $324.5 million dollars. Part of this package involves the construction of a tunnel beneath the Perth CBD linking up with the Northern suburbs railway.

4. In April 2006 the WA Minister for Planning and Infrastructure Minister, Alannah MacTiernan, said the city tunnel end of Package F was 4 months behind schedule extending its completion date to April 2007.

Allegations contained in Statement of Claim

5. On 24 February 2006, LKJV authorised officials from the Construction, Forestry and Mining Union (CFMEU) to conduct a meeting with the employees of LKJV.

6. Following the meeting there was a series of discussions between the CFMEU officials and LKJV management. The CFMEU officials then reported back to the employees.

7. Subsequently, the employees withdrew their labour for that day and remained absent without authorisation from LKJV until 28 February.

8. After reporting back to the employees, the CFMEU officials again met with LKJV management and advised that the employees had withdrawn their labour in support of the claim by a CFMEU shop steward, Peter Ballard, that he was unfairly and or illegally
terminated. The employees demand was that Ballard be unconditionally reinstated with LKJV.

9. On 28 February 2006, the CFMEU scheduled a meeting urging employees to return to work immediately. The respondents continued to refuse to work on that day and also on 1 March 2006.

10. On 2 March 2006, the CFMEU again convened a meeting urging employees to return to work immediately. The respondents continued to refuse to work on that day and also on 2 March 2006.

11. 6 March 2006 was a Public Holiday and 7 March 2006 was a paid Rostered Day Off and the respondents were not rostered to work.

12. Following a meeting on 8 March 2006 the respondents returned to work.

13. The ABCC is seeking:
- a declaration that each respondent engaged in unlawful industrial action;
- a civil penalty be imposed on each respondent of up to $22,000 as set out in section 49(2) the Building and Construction Industry Improvement Act (BCII Act);
- a declaration that 82 respondents bound by the section 127 Order, breached the terms of the Order;
- a penalty be imposed on each respondent of up to $6,600 as set out in section 178(4) of the pre-reform Workplace Relations Act 1996; and
- legal costs.

Related Court Proceedings

14. On 24 February 2006, Package F Head Contractors LKJV applied for an urgent injunction to prevent further industrial action occurring on the project. The ABCC intervened in this matter pursuant to section 71 of the BCII Act, as it was deemed to be "in the public interest". The Supreme Court made orders granting injunctions in terms substantially similar to those sought by the applicants and supported by the ABCC.

15. On 3 March 2006, LKJV sought an interim injunction to ban the CFMEU from a meeting of workers scheduled for 8 March 2006. The ABCC again intervened in this matter and made submissions in support of the application by LKJV. The Court declined to grant the injunction ruling that there was no evidence that the union officials had the power or the right to direct employees to return to work. In the proceedings LKJV alleged the industrial action cost the company $200,000 per day. The Court ruled that the question of damages or compensation could not be awarded without going to a full trial.


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